"Stop Patent Piracy" - Why?
Inventive Activity is Key to America’s Prosperity Protecting the rights of Inventors is critical to ensuring that new inventions are made. Industrial Age inventions, such as the light bulb, telephone and automobile, have fundamentally changed the way we live here in the United States and around the world. Information Age inventions such as data encryption, nano-particles and cholesterol medication push further the foundational notion that patents are written and enabled innovations and "include anything under the sun that is made by man" (Chief Justice Warren Burger). Inventors create jobs as their inventions are financed and brought to market. For more than 200 years, U.S. patent laws have protected the work of Inventors better than any other Nation. The elegance and balance of Inventors being given the quo of limited protection for the qid of enabling disclosure was clear to the Founders as a mechanism for democratic dispersal of leading discoveries to benefit all of Society. But, today, these protections are threatened. Before Congress is the #AmericaInventsAct of 2011 which shifts America to the lower, unconstitutional standard of "First-to-File" in stark contrast with US Constitution's Article 1 Section 8 "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
America’s Patent System Must Protect the Work of Inventors Protecting the work of Inventors, not "First-Filers", is one of the primary functions of the U.S. patent system. This is vitally important to ensuring that inventors can continue to create new approaches and new technologies that are accessible in contrast with trade secrets and confidentiality that surrounds other forms of discovery. Without adequate patent protections, what Inventor would not think twice about the effort it takes to bring an innovative new project to market or perfect a new technology? What venture capitalist or financial-backer would accept lower standards, indeed the lack of deep venture capital in other parts of the world are in large part a result of limited protections for the best and brightest innovations. This Congress seeks to undermine the fabric of our wildly successful experiment and return to the time when those with bigger pockets or better access to power got grants of patent protection.
Current Approaches to Patent Reform Would Stifle Creativity, Entrepreneurs The U.S. Patent and Trademark Office ("USPTO") is an important government agency that provides fundamental support for American industry and should be free from partisanship and politics. It is untrue that the Patent Act has gone unchanged since 1952. The 1952 Act reflected codification of case law to that time including the notion of contributory infringement and non-obviousness. A later Amendment in 1970 simplified the ability of Americans to file patents in other countries under the "Patent Cooperation Treaty." Recent reforms, including the Uruguay Rounds of GATT in 1995 eliminated so-called "submarine patents" as the "term" for patents changed from 17 years from the date of grant to 20 years from the date of filing. The mantra of "harmonization" began anew. The "American Inventor's Protection Act of 1999" ("AIPA") eroded the secrecy of American Inventions by requiring the publication of pending American patent applications. Since that time, the notion of research and development is undermined by the prevalence of those that simply read published patent applications and "re-write" their own versions of the filing claiming the invention for themselves. And, more detrimentally, the Applicant-funded USPTO started to suffer diversion of Applicant fees by Congress to other activities in the US Government. The result? Application backlog now exceeding 700,000 applications.
The newest proposal, the "America Invents Act of 2011", is a re-hashing of the Patent Reform Act[s] that have been voted on by both the Senate and the House of Representatives since 2005. The #AmericaInventsAct represents further erosion to the rights of U.S. patent holders. A special interest boondoggle to enhance the position of status quo corporations at the expense of innovative Inventors, as the Founders of this Great Nation feared. Invention would appear as a simple line item expense, not the Value that patents now represent. Often the best way to fight patent infringement is for the patent holder to seek additional determinations of the validity of patents in the name of reducing litigation, America Invents Act is more frightening, even identifying specific patents the taxpayer-funded-bailed-out Banks would not like to pay and more (see, for instance, #DataTreasury). The proposed measure also would make it harder for U.S. companies operating internationally because they have blurred lines over what can be patented and what cannot given a change from our superior First-to-Invent system to a First-to-File system that has been shown to reduce innovation in nations such as Canada ("Does it Matter Who Has the Right to Patent: First-to- Invent or First-to-File? Lessons from Canada", S.T. Lo and D. Sutthiphisal, NBER Working Papers, No. W14926, (April 2009), http://ssrn.com/abstract=1394833).
The Patent System Is Not a Subsidy – And Should Not Be In fact, the patent applicant pays for process, not the public. The U.S. Patent Office is a self-sufficient agency funded by the fees that applicants pay when they apply for patents and trademarks. However, many companies that have benefited from the patent protections are now attacking the system as they shift research and development as well as jobs overseas. The courts have not ignored patent law either. The Federal Circuit and U.S. Supreme Court have heard an increasing number of patent cases over the past several years. Still, special interests push for patent reform when all that is needed is proper funding of the US Patent and Trademark Office to handle the backlog of cases is all that is needed. Individual inventors and entrepreneurs are critical to innovation. While some have proposed raising the fees for reviews of patent applications, such increases would harm individual inventors with the courage to pursue new ideas. As the Patent Office should already be self-sufficient, such a measure would merely raise the barrier to entry for new ideas into the marketplace. Return Invention to Inventors and make clear the boundaries that establish patentability. Now, that, would create lots of jobs. "As I [HENRY R. NOTHHAFT] noted in an article last year with retired chief judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit, which handles patent appeals, simply clearing the patent backlog could create up to 2.25 million jobs by 2014. And it wouldn't cost the taxpayer a dime, since the patent office is the only self-supporting agency of the federal government." http://online.wsj.com/article/SB10001424053111904716604576542820083918028.html